H-1B CAP IS APPROACHING

U.S. INS CHANGES MIND ON H-1B CAP NOTICE

The U.S. INS is very close to reaching the H-1B cap for this fiscal year, according to Linda Dodd-Major of the INS.  The exact date that the cap announcement will be issued is still unknown.

Also, the INS' earlier announcement that it will issue a Federal Register notice when it believes it is within 30 days of reaching the cap has been reversed.  INS now states that it will publish the notice only when it believes that the number of H-1B petitions approved, combined with the number in the pipeline, will result in exhaustion of the 115,000 limit.  No 30-day notice will be provided.

The U.S. INS has indicated that procedures this year will be "similar to" those used last year.  Once the notice is issued, no more petitions requesting start dates in this fiscal year will be accepted.  Those petitions already filed that do not make the cap cut-off will be processed for October 1 start dates.  If there is a problem obtaining the approved LCA, the petition will be accepted with proof that the LCA was filed, and an RFE will be issued.  If the response to the RFE is not processed before the cap is reached, the case will not be approved for this fiscal year.   It is expected that last year's rule allowing persons in Duration of Status to remain legally (without working if the EAD has expired) until the next fiscal year numbers are available will be repeated, but the decision on this is not yet firm.

INS does caution that, while it will accept petitions without approved LCAs, it will not accept "skeletal petitions" (i.e., signed I-129s without supporting materials).

INS officials have indicated that those petitions already filed when the notice is issued very likely will make the cut-off, but there is some chance that they will not.  A major variable will be the treatment of the purported overissuance of H-1B numbers last fiscal year.  No decision has been made as of yet whether to deduct that supposed overage from fiscal year 2000 numbers.  If the overage is a high number, and if it is deducted from current year numbers, there is some chance that some of the cases in the pipeline will not make the cut-off.

Click here to "To Beat the H-1B Visa CAP"